McGrew, Tracy Lynn Jr.

Opinion

PD-1204-17 PD-1204-17 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

Transmitted 11/8/2017 5:39 PM Accepted 11/9/2017 3:29 PM DEANA WILLIAMSON

CLERK

No. ________________

FILED

COURT OF CRIMINAL APPEALS IN THE TEXAS COURT OF CRIMINAL APPEALS 11/9/2017 DEANA WILLIAMSON, CLERK

TRACY LYNN MCGREW, JR.

Appellant

v.

THE STATE OF TEXAS

Appellee

Appealed from Docket No. 09-16-00424-CR In the Court of Appeals for the Ninth Judicial District of Texas

PETITION FOR DISCRETIONARY REVIEW OF APPELLANT TRACY LYNN MCGREW, JR.

ASHTON CHRISTOPHER ADAIR

STATE BAR NUMBER: 00795907 MAILING ADDRESS: 7400 GULF FREEWAY, HOUSTON, TEXAS 77017 PHYSICAL ADDRESS: 7400 GULF FREEWAY, HOUSTON, TEXAS 77017 TELEPHONE: 713-777-5297

TOLL FREE FACSIMILE: 844-273-9752 CELL PHONE: 832-221-8759

EMAIL: ASH@HOUSTONTXLAWYER.COM

COUNSEL FOR APPELLANT

IDENTITY OF JUDGE, PARTIES AND COUNSEL The trial court judge in this case was Judge Dennis Watson.

The parties to the judgment in this case are Tracy Lynn McGrew, Jr. and the State of Texas.

The names and addresses of all trial and appellate counsel are:

Trial Counsel for the State of Texas:

Anthony Franklyn

Sara Corradi

Assistant District Attorneys Montgomery County, Texas

207 W. Phillips, Second Floor Conroe, Texas 77301

Trial Counsel for Appellant Tracy McGrew, Jr.:

Ashton C. Adair

State Bar No. 00795907

7400 Gulf Freeway

Houston, Texas 77017

Appellate Counsel for the State of Texas:

MONTGOMERY COUNTY DISTRICT ATTORNEY, BRETT LIGON William J. Delmore III

Asst. District Attorney

207 W. Phillips, 2nd Floor Conroe, TX 77301

Brett W. Ligon

District Attorney

Montgomery County, Texas

207 W. Phillips, Second Floor Conroe, Texas 77301

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Philip S. Harris

Assistant District Attorney Montgomery County, Texas

207 W. Phillips, Second Floor Conroe, Texas 77301

Appellate Counsel for Appellant Tracy McGrew, Jr.:

Ashton C. Adair

State Bar No. 00795907

7400 Gulf Freeway

Houston, Texas 77017

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TABLE OF CONTENTS

IDENTITY OF JUDGE, PARTIES AND COUNSEL.............................................. i TABLE OF CONTENTS ......................................................................................... iii INDEX OF AUTHORITIES......................................................................................v STATEMENT REGARDING ORAL ARGUMENT ...............................................1 STATEMENT OF THE CASE ..................................................................................1 STATEMENT OF PROCEDURAL HISTORY........................................................2 QUESTIONS PRESENTED FOR REVIEW ............................................................2 REASONS FOR REVIEW ........................................................................................3 ARGUMENT IN SUPPORT OF REASONS FOR REVIEW ..................................4

I. The Court of Appeals has Decided an Important Question of State and Federal Law in a Way that Conflicts with the Applicable Decisions of the Supreme Court of the United States ................................................................4 A.The Court of Appeals Erred in Holding that Mr. McGrew’s Conduct was Sufficiently Distinguishable from that of Innocent People under the Same Circumstance ..............................................................................................4 II. The Court of Appeals has Erred in its Interpretation of the United States Constitution’s Fourth Amendment as it Relates to the Concept of Reasonable Suspicion to Detain a Citizen .......................................................6 A. The Court of Appeals Erred in Holding that the Reasonable Suspicion Standard can be Met without Identifying a Connection Between a Suspect’s Behavior and a Particular Crime................................................6 i. Deputy Vasquez’s Suspicion was Based on Subjective Views..............6 ii. Deputy Vasquez did not Articulate a Connection Between Mr.

McGrew’s Actions and a Crime .............................................................7

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iii. Deputy Vasquez Did Not Articulate a Connection Between Mr.

McGrew’s Actions and the Violation of a Codified Law .......................8 iv. The Court’s Holding in Derichsweiler Identified Reasonable Suspicion of a Specific Crime and Distinctions Between Suspects in Prior and Impending Crimes ...................................................................................9 v. Reasonable Suspicion of Criminal Activity Must Be Defined as Reasonable Suspicion of a Violation of a Codified Criminal Law ......10 vi. Geographic Area and Time of Day are Not Sufficient Alone to Establish Justification of Detention ....................................................111 III. The Court of Appeals’ Decision is in Conflict with Other Court of Appeals’ Decisions on the Same Issue........................................................12 A. Other Appellant Courts have Held that Sufficient Articulable Facts Must Link a Suspect with a Particular Crime in Order to Justify a Detention .12 CONCLUSION ........................................................................................................13

REQUEST FOR RELIEF ........................................................................................13 CERTIFICATE OF COMPLIANCE……………………………………………...14 CERTIFICATE OF SERVICE ................................................................................14 APPENDIX ..............................................................................................................15

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INDEX OF AUTHORITIES

Cases Brodnex v. State, 485 S.W.3d 432 at 438 (2016).....................................................12 Brown v. Texas, 443 U.S. 47, 52 (1979) ....................................................................4 Comer vs. State, 754 S.W. 2d 656 .............................................................................1 Derichsweiler v. State, 348 S.W.3d 906 at 917 (2011) .............................................9 Florida v. Royer, 460 U.S. 491, 500 (1983) ..............................................................4 Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App. 2001) ....................................7 Garza vs. State, 771 S.W.2d 549, 558-559 ..............................................................12 St. George v. State, 197 S.W.3d 806 at 815 (Worth 2006) ........................................7 Terry v. Ohio, 392 U.S. 1(1968) ................................................................................4 Wade v. State, 422 S.W.3d 661, at 672 (2013) ..........................................................6 Rules Tex. R. App. P. 66.3(a) ..............................................................................................3 Tex. R. App. P. 66.3(c) ..............................................................................................3 Tex. R. App. P. 66.3(d) ..............................................................................................3

Constitutional Provisions Fourth Amendment of the United States Constitution ..................................... 2, 3, 4 ......................................................................................................................................

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To The Honorable Court of Criminal Appeals of Texas:

STATEMENT REGARDING ORAL ARGUMENT The undersigned attorney waives oral argument.

STATEMENT OF THE CASE

This is a petition for discretionary review of the denial of Tracy Lynn McGrew, Jr.’s Motion to Suppress Evidence obtained during the stop of his vehicle on or about March 20, 2016. Appellant Tracy Lynn McGrew, Jr. was arrested and charged with Possession of Marijuana on or about March 20, 2016. See Court Clerk’s Record, pages 4-5. On July 11, 2016, Appellant filed a Motion to Suppress. See Court Clerk’s Record, pages 6-10. On October 4, 2016, Appellant filed his First Amended Motion to Suppress which is not included in the Court Clerk’s Record. The only difference between Appellant’s Original Motion to Suppress and Appellant’s First Amended Motion to Suppress is the omission of references to Comer vs. State, 754 S.W. 2d 656. Appellant’s First Amended Motion to Suppress is included in the Appendix to this Petition, and is referenced by the County Court Judge on page 5, lines 4-5 of the Court Reporter’s Record.

The Montgomery County Court at Law Number One denied Appellant’s Motion to Suppress on October 4, 2016 and signed the Order thereon on November 1, 2016. See Court Clerk’s Record, page 11. After the denial of the Motion to Suppress, Appellant pled guilty to the charge of Possession of Marijuana on October

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4, 2016, and was sentenced to 3 days in the Montgomery County Jail (with credit for 3 days) and a $500.00 fine plus court costs of $302.00. See Court Clerk’s Record, pages 12-14. The Court certified Appellant’s right to Appeal the Denial of his Motion to Suppress on October 4, 2016. See Court Clerk’s Record, page 16. Appellant filed his Notice of Appeal on November 1, 2016. See Court Clerk’s Record, page 18.

STATEMENT OF PROCEDURAL HISTORY The Ninth Court of Appeals affirmed the judgment of the trial court in a decision rendered October 4, 2017. Appellant now files his petition for discretionary review pursuant to Rule 68 of the Texas Rules of Appellate Procedure.

QUESTIONS PRESENTED FOR REVIEW 1.

Whether a police officer violates a citizen’s United States Constitution’s Fourth Amendment rights by detaining an individual without being required to articulate a connection between the individual’s behavior and a specific crime.

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REASONS FOR REVIEW

I.

The Court of Appeals has decided an important question of state and federal law in a way that conflicts with the applicable decisions of the Supreme Court of the United States. Tex. R. App. P. 66.3(c).

II.

The Court of Appeals has erred in its interpretation of the United States Constitution’s Fourth Amendment as it relates to the concept of reasonable suspicion to detain a citizen. Tex. R. App. P. 66.3(d).

III.

The Court of Appeals’ decision is in conflict with other Court of Appeals’ decisions on the same issue. Tex. R. App. P. 66.3(a).

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ARGUMENT IN SUPPORT OF REASONS FOR REVIEW

I. The Court of Appeals has Decided an Important Question of State and Federal Law in a Way that Conflicts with the Applicable Decisions of the Supreme Court of the United States

A. The Court of Appeals Erred in Holding that Mr. McGrew’s Conduct was Sufficiently Distinguishable from that of Innocent People under the Same Circumstance

The Fourth Amendment applies to seizures of the person, including brief investigatory stops of motor vehicles. Terry v. Ohio, 392 U.S. 1(1968). Some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity must justify an investigatory stop. Brown v. Texas, 443 U.S. 47 (1979). There was no testimony that Appellant was or was about to be engaged in criminal activity. It is the State's burden to articulate facts sufficient to support reasonable suspicion. Brown v. Texas, 443 U.S., at 52; see also Florida v. Royer, 460 U.S. 491, 500 (1983).

On or about March 20, 2016, Montgomery County Deputy Vasquez observed the Appellant’s vehicle backed into a parking stall with its parking lights on with several people in the vehicle. See Court Reporter’s Record page 9, lines 4- 9. The Deputy stated that she observed occupants of the car start to move “around kind of frantically.” See Court Reporter’s Record page 9, lines 18-20. Deputy Vasquez continued down the path of the parking stall driveway and turned left to go back toward Appellant’s vehicle. As she turned left, Deputy Vasquez observed the

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vehicle turn on its lights and leave. See Court Reporter’s Record page 9, lines 20- 25.

Deputy Vasquez followed Appellant’s vehicle, and observed several people in the vehicle “shifting around” and observed one person looking back at the Deputy’s patrol vehicle and acting as if he was “shifting around and moving stuff around in the backseat.” Deputy Vasquez then stopped and detained Appellant. See Court Reporter’s Record page 10, lines 19-21. The Deputy testified that she would not have stopped Appellant if the occupants in his car had gotten out of the car while in the parking lot. See Court Reporter’s Record page 10, line 25 - page 11, line 2.

Upon cross-examination the Deputy testified that the occupant’s movements and the departure of Appellant and his occupants from the hotel parking lot made her suspicious of Appellant; but she testified that she had “no idea of what crime.” See Court Reporter’s Record page 13, lines 5-22.

Deputy Vasquez testified that the behavior of Appellant and his occupants appeared the same as the behavior of law abiding people. See Court Reporter’s Record page 16, line 22 – page 17, line 1.

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II. The Court of Appeals has Erred in its Interpretation of the United States Constitution’s Fourth Amendment as it Relates to the Concept of Reasonable Suspicion to Detain a Citizen

A. The Court of Appeals Erred in Holding that the Reasonable Suspicion Standard can be Met without Identifying a Connection Between a Suspect’s Behavior and a Particular Crime

As Deputy Vasquez had stopped Appellant’s vehicle and she was still behind Appellant, Deputy Vasquez arbitrarily labels Appellant a “suspicious person,” but is unaware of any connection between Appellant and any specific crimes. See Court Reporter’s Record page 19, line 3 – page 20, line 3. “…[A]n officer and the Government must do more than simply label a behavior as ‘suspicious’ to make it so. The Government must also be able to either articulate why a particular behavior is suspicious or logically demonstrate, given the surrounding circumstances, that the behavior is likely to be indicative of some more sinister activity than may appear at first glance.” Wade v. State, 422 S.W.3d 661, at 672 (2013).

i. Deputy Vasquez’s Suspicion was Based on Subjective Views Reasonable suspicion exists where the officer has:

1) specific articulable facts that, 2) when combined with rational inferences from those facts, 3) would lead the officer to reasonably suspect that a particular person has engaged or is engaging in criminal activity [Itemization numbers added by Appellant].

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See Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App. 2001).

Deputy Vasquez is required to articulate a connection between Appellant’s behavior and a crime in order to detain said person.

ii. Deputy Vasquez did not Articulate a Connection Between Mr. McGrew’s Actions and a Crime

A Deputy must satisfy element (3) of the Reasonable Suspicion standard: the officer must reasonably suspect that a particular person has engaged or is engaging in criminal activity. It is unfathomable to make a connection to any criminal activity, without stating which criminal activity may be afoot. It is inherently unfair and subject to individual bias if the standard for detention is an individual officer’s subjective belief of what is unusual behavior, without articulating the behavior’s connection to a particular crime. The officer "must be able to articulate something more than an inchoate and unparticularized suspicion or hunch.” St. George v. State, 197 S.W.3d 806 at 815 (Worth 2006).

In the interests of uniformity and fairness, it is important for the officer to identify a particular crime instead of using the generic label “criminal activity.” The term “criminal activity” must refer to a violation of the voluminous archives of laws that we are all bound to follow. To be included in the definition, the detaining officer must point to at least one of these laws to possess the authority to detain a citizen. While criminal statutes have titles and labels, they are also comprised of elements which are required to be proven before a person can be convicted. Our system runs

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this way because it would be unfair, for example, to make it against the law to commit “criminal mischief” without a definition which includes specific elements making certain specific behavior illegal. Otherwise, there would be no standard for acting in our society and each jurisdiction or officer could subjectively define what they believe “criminal mischief” to be. This applies equally to crimes to which we would all have an intuitive definition, such as theft. Indeed, the crime of “theft” is specifically defined with elements so that we can have a uniform and fair guide, with little room for reasonable debate. The same should be true for labeling a person as engaged or is engaging in criminal activity. The term “criminal activity” should be defined.

iii. Deputy Vasquez Did Not Articulate a Connection Between Mr. McGrew’s Actions and the Violation of a Codified Law

The term “criminal activity” must be defined as a violation of one of our codified laws. If an officer cannot identify which of the laws she suspects a person has violated, she is using the term arbitrarily, applying a subjective standard which will result in unfairness due to her unparticularized suspicion or hunch. In this instance, all of us would be subject to detention for a variety of undefined reasons.

It is not difficult to articulate a suspicion of a violation of one of our many laws. Deputy Vasquez’s suspicion was inchoate and an unparticularized hunch or fishing expedition.

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iv. The Court’s Holding in Derichsweiler Identified Reasonable Suspicion of a Specific Crime and Distinctions Between Suspects in Prior and Impending Crimes

There are a few opinions that have stated that an officer need not identify a particular crime in order to establish reasonable suspicion. The Holdings on this issue should be overturned. Each of those opinions resulted in the Court opining a reasonable suspicion of a specific crime to justify the detention. For example, in Derichsweiler v. State, the Court states of the defendant’s actions: “It reasonably suggests someone who was looking to criminally exploit some vulnerability— a weak or isolated individual to rob or an unattended auto to burgle.” Derichsweiler v. State, 348 S.W.3d 906 at 917 (2011). Clearly the Court in Derichsweiler does justify the stop there based upon a reasonable suspicion of the specific crimes of robbery or burglary of an automobile. Regardless of the method or reasoning, it is impossible to define “criminal activity” without at least one reference to a codified law. Derichsweiler also makes a distinction between a suspect for a previous crime, and a suspect in an impending crime, indicating that a lower standard to stop a person is warranted to stop an impending crime. Derichsweiler v. State, 348 S.W.3d 906 at 917 (2011). Deputy Vasquez never alluded to whether Appellant was a suspect in a previous or impending crime. This type of loose suspicion should not be encouraged.

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v. Reasonable Suspicion of Criminal Activity Must Be Defined as Reasonable Suspicion of a Violation of a Codified Criminal Law

It is well established that an officer must use the totality of the circumstances, including everything that law enforcement knew, to justify reasonable suspicion for a stop. It is also well known that the level of culpability to be proven is far less for reasonable suspicion to stop as opposed to probable cause. However, when the totality of the circumstances renders an officer unable to articulate how said circumstances are related to a particular crime, we are left with a detention that produces the question: which crime, emergency, or matter, is the officer investigating? If the stop is not somehow reasonably articulated to relate to a particular crime or crimes, the result becomes absurd in that the officer can then detain a person for a long time, for the purpose of investigating many possible crimes that could theoretically be committed. For there to be a limit to the scope and duration of a detention, the officer must be investigating particular crimes in which the officer reasonably suspects of the detainee. In order to do so, the officer must be able to identify those particular crimes and the connection to the detainee. If we do not define “criminal activity” as a violation of a codified law, or define “criminal activity” in any way, then any behavior can be viewed as being suspect to “criminal activity,” depending on the officer’s subjective bias. This leaves the door wide open for unreasonable detentions of innocent people. It is unreasonable to conclude that

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we can define “criminal activity” without using one or more of the definitions or titles found in our written laws, and it is equally unreasonable to refrain from defining “criminal activity” when the same is a term used to justify a detention. It would otherwise be completely subjective, with no standards, leading to a conflicted system, and opening the door to corruption and/or personal bias of each individual officer and/or Judge. It is better to provide guidelines and definitions when we can, than to leave the definitions and standards open to unending debate. While it is not always easy or practical to provide such guidelines, it is easy in this case. A reasonable suspicion of “criminal activity” should be defined as a reasonable suspicion of a violation of a “codified criminal law.”

vi. Geographic Area and Time of Day are Not Sufficient Alone to Establish Justification of Detention

It was not established during the Motion to Suppress Hearing that this particular area had more occurrence of general crime than other areas or other times of the year, but there were occurrences of criminal mischief, burglary, and theft See Court Reporter’s Record page 7, lines 16-19 and See Court Reporter’s Record page 15, lines 2-4). The Deputy was thus patrolling with suspicions for these particular crimes. It is commendable for the Deputy to be suspicious of these crimes and observe the area, but she needed more than what was presented to infringe on a person’s Constitutional rights.

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Deputy Vasquez did not testify about her training or elaborate on how her experience led her to be suspicious of the Appellant herein. There was no testimony that the area where Appellant was stopped was a high drug area. Therefore, the State did not meet its burden of proof to justify the stop of Appellant.

III. The Court of Appeals’ Decision is in Conflict with Other Court of Appeals’ Decisions on the Same Issue

A. Other Appellant Courts have Held that Sufficient Articulable Facts Must Link a Suspect with a Particular Crime in Order to Justify a Detention

The Brodnex Court, regarding the Ruling in Garza stated (with emphasis added in bold by the herein Appellant): In Garza vs. State, 771 S.W.2d 549, the officer had heard that the appellant was "good for" some burglaries, had seen the appellant's mugshot, had received a description of the appellant's vehicle, and had heard that the appellant was a narcotics addict. Garza, 771 S.W.2d 549 at 558-59. The Court held that, because the officer's information never linked the appellant to a particular crime, and that prior to stopping the appellant, the officer did not observe anything to indicate that an offense had been or was being committed, the detention was not supported by sufficient articulable facts. Id. Very similar to Garza, the officer in Brodnex v. State had no information indicating that Appellant was tied to a specific crime or was in the process of perpetrating one [and thus his Motion to Suppress should have been granted]. Brodnex v. State, 485 S.W.3d 432 at 438 (2016).

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CONCLUSION

The balancing act we are analyzing in this case is the difference between a police state where an officer can make an ambiguous contention of labeling an actor “generally suspicious,” to implement a stop, depriving a citizen of the freedom of movement and privacy we all cherish, and a State which is based upon the notion of personal freedom for the people to go about their business uninterrupted. There is a point where living under greater power and discretion conferred upon security forces becomes intolerable because you have lost your freedom of movement and privacy, thereby depriving reasonable persons of the dignity of perceived freedom; and without such dignity for some, the loss of the very worth of existence in such a state. A prison, where an inmate can be detained and searched at any time is certainly not a preferable place to live.

REQUEST FOR RELIEF

Appellant respectfully requests that this Court grant his Petition for Discretionary Review and reverse the decision of the Court of Appeals. The evidence seized should be ordered suppressed, and the conviction based on that evidence should be reversed.

Respectfully submitted,

Ashton Adair /s/ Ashton Adair

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Attorney for Appellant 7400 Gulf Freeway Houston, Texas 77017 Telephone: 713-777-5297 Fax: 844-273-9752 ash@houstontxlawyer.com

CERTIFICATE OF COMPLIANCE I certify that this document was prepared with Microsoft Word 2013, and that, according to that program’s word-count function, the sections covered by TRAP 9.4(i)(1) contain 2503 words and the text is in 14-point font.

Ashton Adair

____________________

Ashton Adair

CERTIFICATE OF SERVICE

I hereby certify that on the 8TH day of November, 2017, a true and correct copy of this Petition for Discretionary Review of the Appellant’s Tracy Lynn McGrew, Jr., was served upon The Montgomery County District Attorney’s Office by fax to fax number 936-788-8395 and electronic document transmission.

Ashton Adair /s/ Ashton Adair

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APPENDIX